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Criminal Law
Rutgers University, Newark School of Law
Bergelson, Vera

CRIMINAL LAW                                        PROF. BERGELSON  / RUTGERS NEWARK – SPRING 2013
RULE > APPLICATION > CONCLUSION; BEYOND REASONABLE DOUBT = only reasonable inference, excludes other inference
Probable cause—the existence of a substantial factual basis for supporting that an offense was committed and that the arrested person committed it.
Misdemeanor—a lesser crime punishable by a fine and/or county jail time for up to one year.
Felony—a crime sufficiently serious to be punishable by death or a term in state or federal prison, carrying a minimum term of one year or more. A sentence upon conviction for a felony may sometimes be less than one year at the discretion of the judge and within limits set by statute.
Malum in se—an act that is wrong inherently by nature.
Malum prohibitum—an act that is wrong b/c it is prohibited.
The defendant may appeal a conviction based on the grounds that:
1)      The charge on which he was convicted is not a crime
2)      The evidence was insufficient
3)      Not all of the necessary elements of the crime were alleged.
4)      The jury was improperly instructed.
Theories of punishment:
1) Retribution (backwards/past crime)
2) Utilitarian (future benefits)
    a-Deterrence: i. General (all of society) & ii. Specific (specific individual)
    b-Rehabilitation: Improve conditions for D
    c-Incapacitation: Prevent future crime
    d-Social Cohesion: Society feels as one, sticking together as a society
MPC Section 2.05 – When the offense is reduced to a violation, it is not a crime and may not result in no sentence other than a fine or other civil penalty under Sections 1.04(5) and 6.02(4).   
1. Mens rea / malice – guilty mind (not just wickedness as in Cunningham)
2. Actus reus – act or omission (must have statutory or contractual duty or assumption of care)
3. But for cause / Cause in fact
4. Proximate cause / Legal cause (Intervening/superseding cause – abnormal response can break the chain)
5. Defenses (negating factor)
Eggshell skull rule/foreseeability – defendant takes the victim as she finds her
Proportionality – In Ewing (golf club/3 strikes case), CA said that the Eight Amendment doesn't guarantee proportionality, only that punishment cannot be grossly disproportional. In Graham, FL said that minors who don’t commit violent crimes shouldn’t receive life w/o parole.
No one can be punished just for thoughts, MPC 2.01(1) offers full defense.
Attending Circumstance—anything that is not a conduct or result, Ex: dwelling in burglary.
Specific Intent—requires an additional purpose. Ex: Burglary—you don’t only trespass, but you intend to commit a crime.
Motive vs. Purpose—The latter is the objective, what you use the “motive” for. Motive is relevant for sentencing, but for the adjudication part.
Murder = unlawful killing of another human being w/ malice
Suicide isn’t murder. Assistance to suicide isn’t being an accomplice. You can’t kill someone who’s already dead.
Common law – person born & alive, must die within 1 year and 1 day
New statues re: fetus (CA changed its laws after Keeler), NOT MPC 210.2
1) Express malice – there’s intent to kill, either with purpose or knowledge
a. Purpose – conscious objective to kill the victim
b. Knowledge – not conscious objective, substantial certainty that D’s conduct would lead to death. (=willfull blindness, Ex: transporting drugs in a car, but claiming you have no actual knowledge they were there)
MPC 2.02  – NO MALICE / knowledge satisfied by knowledge of high probability
Common law – you can also prove express malice by intent to inflict serious bodily harm (Ex: shooting at the foot)
2) Implied malice – was the killing intentional (anticipated) or unintentional (unanticipated)?
a. Reckless – unjustifiable risk created & ignored, no objective or subjective certainty. (Ex: reckless driving, drunk driving, firing your gun on New Year’s Eve)
b. Negligent – didn’t know the risk, but should have (Ex: trying to p

D has to be in rage, not acting rationally. No cooling off period. MPC doesn’t talk about the cooling period or put a time limit.
You sometimes get a defense if you kill a complicit party associated with the provoker.
Provoker > P1 instead of P2 (P1=killed by mistake) >P2 (associate of P) (P2=Ex: someone who is laughing at the defendant)> Innocent V
2) Diminished capacity (in some jurisdictions) – mental disturbance causing D not to think rationally, not insanity.  MPC 210.3 – Extreme Mental or Emotional Disturbance (A factual question for the jury, often experts testify)
First we have to determine if there’s EM/ED
2)  w/ reasonable explanation or excuse
     a- Determined from viewpoint of a person in D’s “situation” (age, gender, handicap, any
         special physical attributes, past abuse etc. As a defense lawyer, you want to make it as
         subjective as well. However, we cannot include mental illness or psychological disorders.)
     b- Under circumstances as D believes them to be
Then we see if EM/ED is reasonable
Provocation—only mentioned in MPC 210.3 as part of manslaughter, doesn’t have its own section.
3) Imperfect self-defense (honest but unreasonable belief)
Involuntary manslaughter – unjustifiable risk + unanticipated death. Can never lead to 1st degree murder due to lack of P&D.
According to Hall, there are four elements to showing the minimum culpability for involuntary manslaughter:
1) The activity has a substantial risk of causing death.
2) The activity has a risk that is not justifiable.
3) The risk must be a gross deviation from the standard of care.
4) The actor must consciously disregard the risk.